Christena H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120171762 (E.E.O.C. Dec. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Christena H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120171762

Agency No. 4K210011916

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 3, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales,
Services/Distribution Associate (SSDA) at the Agency’s Simpsonville Post Office in
Simpsonville, Maryland. Complainant has worked for the Agency with medical restrictions in
different modified assignments since 1995. Since October 17, 2015, Complainant had been
working in a modified assignment post to accommodate her medical restrictions at the
Simpsonville Post Office which consisted of 23.5 hours a week. On June 17, 2016, her doctor
discharged her with the following restrictions: lifting/carrying up to four hours twenty pounds
intermittently; sitting up to eight hours; standing, driving, and operating machinery up to one
hour; walking up to 30 minutes; pulling/pushing up to four hours; simple grasping, fine

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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manipulation, and reaching above the shoulder up to six hours; and no climbing, kneeling,
bending, stooping, or twisting.

On November 12, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (musculoskeltal) when:

1. On or about July 27, 2016, she became aware that her request for a reasonable
accommodation position at the Simpsonville Post Office was denied; and
2. On or about July 27, 2016, she was provided with a used ergonomic chair that
was not in compliance with her medical restrictions.

At the conclusion of the investigation, on February 21, 2017, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant
did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
§1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R.
§1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance on Reasonable Accommodation”).

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An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience,
education, and other job-related requirements of the employment position that the individual
holds or desires and, with or without reasonable accommodation, can perform the essential
functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental job
duties of the employment position that the individual holds or desires. Id. § 1630.2(n).

We will assume for the purposes of this decision, without deciding, that Complainant is disabled.
We find that the Agency granted her a reasonable accommodation. While Complainant asked to
be reassigned as a reasonable accommodation, the Commission has long held that reassignment
is the reasonable accommodation of last resort, and is required only after it has been determined
that there are no effective accommodations that will enable Complainant to perform the essential
functions of her current position or all other reasonable accommodations would impose an undue
hardship. Zachary K. v. Department of Veterans Affairs, EEOC Appeal No. 0120130795
(November 19, 2015) citing EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October
17, 2002).

In this case, Complainant could not perform the essential functions of her SSDA position with
her current restrictions. Her walking/standing restriction for no more than 30 minutes precludes
her from performing an essential function of an SSDA which includes greeting customers and
performing a variety of services at the retail window. Since Complainant could not perform the
essential functions of an SSDA with her restrictions, the record reflects that the Agency engaged
in an interactive process with Complainant to process her reasonable accommodation request and
find her an assignment within her restrictions.

Complainant alleges the Agency denied her request to return to a position at the Simpsonville
Post Office or at the Columbia Post Office, after her June 2016 restrictions changed and she was
relieved from the modified assignment she had been assigned to since October 2015.2 Both of
her Simpsonville and Columbia positions she held were modified assignments for her restrictions
at the time. At the time she filed her complaint, Complainant was assigned to another modified
assignment at the Baltimore Main Post Office which the Agency found after reviewing her
accommodation request and June 2016 restrictions. This modified assignment was a Call Center
Expert. Complainant admitted the duties of this assignment are within her restrictions.
Consequently, we find that the Agency fulfilled its obligation to provide Complainant with a
reasonable accommodation.

Complainant alleges a coworker was able to return to his former position after he was on medical
leave. The Agency refuted this allegation. The coworker, who is in maintenance, returned to
work full time, without restrictions, unlike Complainant who has restrictions and was hired for a

2 Between approximately 1998-2013, Complainant held a modified assignment within her
restrictions at the time at the post office in Columbia, Maryland. As a part of her accommodation
request, she desired to return to that location. The Agency informed her that assignment was a
modified assignment for her restrictions at the time and was presently unavailable.
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SSDA position. Accordingly, the coworker is not similarly situated to Complainant.
Complainant failed to establish that similarly situated employees were treated differently than
her based on her protected basis.

Regarding claim two, while a qualified individual with a disability is entitled to a reasonable
accommodation, he or she is not necessarily entitled to the accommodation of choice. See
Complainant v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
The record established that Complainant was provided an ergonomic chair to accommodate her
need for high-back lumbar support. The ergonomic chair Complainant received in July or August
2016, was a recycled ergonomic chair. Complainant admits the chair was an ergonomic chair but
it was used chair. This chair was designated for the accommodation Complainant requested.
Complainant informed management the chair did not provide enough cushioning for her hips.
There is no medical evidence showing that the used/recycled chair did not accommodate
Complainant’s medical restrictions. Complainant alleged one individual in the office with
medical restrictions received a new chair to accommodate her restrictions. The Agency directly
refuted this claim and stated that the individual received a recycled chair. Regardless, we note,
Complainant later received a new ergonomic chair while all other employees received recycled
chairs. Complainant did not claim that the new chair did not reasonably accommodate her
claimed disabilities.

For both claims we find that Complainant was reasonably accommodated by the Agency.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015).
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All requests and arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission. Complainant’s request may be submitted via
regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street,
NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall
be deemed timely filed if it is received by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in
digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 19, 2018
Date